Misenhamer v. Pharr
| Decision Date | 24 February 1959 |
| Docket Number | No. 37476,No. 1,37476,1 |
| Citation | 99 Ga.App. 163,107 S.E.2d 875 |
| Parties | Louise MISENHAMER v. H. E. PHARR |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. An invitee is not obliged to inspect the premises to discover latent defects nor even to observe all patent defects.
2. 'Negligence is predicated on what should have been anticipated rather than on what happened; on faulty or defective foresight rather than on 'hindsight' which reveals a mistake.'
Mrs. Louise Misenhamer brought suit in four counts for damages against Hugh E. Pharr, t/a Peachtree Hills Golf Center, in the Superior Court of Fulton County.
The facts alleged in the petition as amended were substantially as follows: the plaintiff went to a golf driving range, operated by the defendant and known as Peachtree Hills Golf Center on June 20, 1956; she paid the customary admission charge for a bucket of golf balls and proceeded to go to the area from which the balls are driven; this golf driving range was so arranged that there were two locations provided for driving golf balls; namely, from the top of a bank, which was approximately one hundred yards long, or from a relatively level area at the foot of, and approximately eight feet lower than, the top of the bank; no way is provided for participants to go from the top of the bank to the bottom except some seldom used steps about one hundred fifty feet away from the entrance; the steps went down the end of the bank and were concealed by the bank; this bank slopes off at approximately a forty-five degree angle with the horizontal; over most of the bank, on the sides and on the top and the foot of the bank, grass is growing; when the plaintiff entered, she walked onto the bank; she could not see and had no knowledge of the existence of the steps; she wished to drive balls from the lower area, provided by the defendant, and she looked carefully at the side of the bank and selected a place to descend which was a path from the top of the bank; the area appeared to be commonly used and appeared safe; the plaintiff proceeded to go down the path which led from the top of the bank to the base of the bank; this path was somewhat worn, or washed out, near the top of the bank and was worn clear of grass at that point; the plaintiff proceeded to descend the side of this bank and when she reached a point approximately three feet from the bottom of the bank, her feet slipped out from under her when she stepped on some loose sand and gravel which was concealed beneath the grass; when her feet slipped, she fell and suffered a broken ankle and other injuries which are not now material; the loose sand and gravel, which caused the plaintiff to fall, constituted a hazardous condition and could not have been discovered by the plaintiff without stooping, brushing the grass aside, and making an investigation and an inspection of the area; as a person looks down the side of the bank from the top, it does not appear that the bank is as steep as it actually is and the angle of the bank is, therefore, an optical illusion.
The grounds of negligence alleged in the first three counts are as follows:
In Count IV, there is a slight change in ground (c) because this count is based on constructive knowledge of the defendant of the dangerous condition. The first three counts allege actual knowledge of the defendant of the dangerous condition.
Count I describes the facts stated above with the possible exception that it does not state that the grass was worn from the path which the plaintiff descended.
Count II describes the path referred to above as being worn clear of grass and depressed a few inches below the level of the bank at the top.
Count III alleges the same facts, approximately, as count II, with the addition that it is alleged that the bank, down which the plaintiff was walking, gradually tapers out into a curve near the lower area of the driving range and does not intersect this lower area at an angle.
Count IV alleges that the essential facts, which are alleged in Count III, with the additional allegation that the hazardous condition, which caused the plaintiff to fall, were known to the defendant or in the exercise of reasonable care, should have been known to the defendant for the reason that the hazardous condition had existed for at least one week prior to the time the plaintiff fell.
The trial judge sustained a general demurrer to each count of the petition. To this judgment the plaintiff excepts and the case is here for review.
Ward, Brooks, Parker & Daniel, William W. Daniel, Atlanta, for plaintiff in error.
Lokey & Bowden, Hamilton Lokey, Atlanta, for defendant in error.
. In determining the sufficiency of the petition as against general demurrer, the first matter for consideration is whether the facts alleged showed such a want of care on the plaintiff's part to apprehend and avoid the alleged negligence of the defendant as to debar her right of recovery.
'A plaintiff is not required to allege facts showing he exercised due care for his own safety, or that the injury was not the result of his own negligence.' McDowall Transport, Inc. v. Gault, 80 Ga.App. 445, 447, 56 S.E.2d 161, 163.
However, if the facts alleged affirmatively reveal that he failed to exercise ordinary care to avoid the alleged negligence of the defendant after the same was apparent or could, by the use of the same degree of care, have been discovered, the petition is subject to general demurrer. Pollard v. Heard, 53 Ga.App. 623, 626, 186 S.E. 894.
Under authority of Etheredge v. Central of Georgia Ry. Co., 122 Ga. 853(1, 2), 50 S.E. 1003 and Lane Drug Stores v. Brooks, 70 Ga.App. 878, 884, 29 S.E.2d 716 the plaintiff invitee had the right to use the way down the bank in descending from the higher to the lower level of the driving range. According to the petition it may be fairly inferred that the way was customarily used with the defendant's knowledge and the descent by an invitee of a 45 degree dirt bank is not as a matter of law dangerous or imprudent. An...
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...defects nor even to observe all patent defects.' Lane Drug Stores v. Brooks, 70 Ga.App. 878, 29 S.E.2d 716. Misenhamer v. Pharr, 99 Ga.App. 163, 166, 107 S.E.2d 875, 879. In Banks v. Housing Authority of the City of Atlanta, 79 Ga.App. 313, 53 S.E.2d 595, cited by the majority opinion, it a......
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...'An invitee is not obliged to inspect the premises to discover latent defects nor even to observe all patent defects.' Misenhamer v. Pharr, 99 Ga.App. 163, 107 S.E.2d 875. 'If the defect, though patent, is not of such a nature and character as to be necessarily seen in the exercise of ordin......
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